Drug Use and the Rights of the Person criminalization itself. Criminalization imposes a crime tariff’ on drugs, inflating prices and creating high profit margins that make the drug trade attractive to David A. J. Richards organized crime. The organized crime argument begs the question, since it is criminalization, not drug use itself, that makes possible organized crime A drug may be broadly defined as “any chemical agent that affects living involvement. processes” that may be ingested through the mouth, the rectum, by injection, or by Second, to the extent that drug use is related to increases in other criminal inhalation. Importantly, this standard definition is pharmacological: a substance is activity, or diversion of criminal activity into certain forms, that causal matrix defined as a drug by its mechanism of chemical agency. Two significant conclusions depends on criminalization, not on drug use itself. In order to pay the crime tariff on follow. First, according to this definition, alcohol, caffeine, and nicotine are drugs, drugs, users may engage in burglary, theft, or robbery, or in services with their own however ingested and in whatever circumstances, for they are chemical agents within crime tariffs, such as prostitution, gambling, and drug trafficking itself, In addition, its terms. The reluctance of social convention to regard these agents as drugs requires the criminal stigma and enforced covertness probably encourage, or at least reinforce, explanation and investigation. The popular definition of drugs certainly cannot be dependence on narcotics, and certainly make detection and possible control of accepted uncritically without begging a most important moral question. addiction more difficult. Where heroin is made available to addicts in regulated Second, the scientific definition implies nothing about the purposes of drug use, contexts at low or minimal prices, as it is in Britain, no causal nexus with ancillary which include therapeutic cure, relief of symptoms, pain, or anxiety, regulations of crime exists, and the level of drug addiction appears under control. In the United mood (by way either of depressants or stimulants), stimulation and exploration of States, prior to the Harrison Act, there was no link between drug use and ancillary religious experience, release of hallucinatory fantasy for a range of purposes, and crime. Indeed, the composition of the drug-using population in the United States has recreational pleasure. A political or moral analysis of drug use must go beyond the probably been decisively shaped by criminalization. The population of heroin addicts pharmacological focus on the chemical agency common to all drugs and assess the which before criminalization included many middle-class women, now includes a propriety of various purposes of drug use. disproportionate number of poor urban minorities. The moral implications of this Contemporary drugs may be classified as: the narcotics (opium, morphine, heroin, shift, for which criminalization bears some responsibility, are themselves an methadone, and others), caffeine, nicotine, and depressants (alcohol, barbiturates, appropriate subject for further analysis. tranquilizers, and other sedatives and hypnotics), the stimulants (including coca Third, at least with respect to most drugs now criminalized, there is simply no leaves, cocaine, and amphetamines), and the hallucinogens or phantasticants factual support for the argument that drug use itself releases inhibitions or criminal (mescaline, LSD, LSD-like drugs, marijuana, and hashish). In order to understand tendencies. To the contrary, heroin and marijuana appear to diminish the the American practice of criminal prohibition of certain forms of drug use, we must aggressiveness which often expresses itself in violent crime. No chapter of the take seriously the arguments offered in its defense: (1) criminogenesis; (2) the history of American attitudes to drug use is more instructive than the dependence of control of ancillary forms of physical illness and injury; (3) the intrinsically immoral advocates of criminalization on this argument. Often this argument was supported by and degrading nature of drug use, either in and of itself or in its effects on other selective citations from unreliable journalistic or law enforcement reports, individuals and society in general; and (4) cognate to (3), the self-destructive or self-serving confessions by criminals that their conduct was induced by drugs, or debilitating nature of drug use. Of these arguments, the first and second do not unsubstantiated surmises of enforcement officials wholly lacking any critical justify the current absolute criminal prohibitions of many forms of of drug use; impartiality on the question. therefore, the gravamen of the argument for criminalization turns, as we shall see, on This hystericalized social mythology may unwittingly aggravate the problem of the proper weight to be given to the third and fourth argument. violent crime that it obstensibly seeks to reduce. In deterring the use of the drugs that lessen violent propensities, criminalization may encourage the use of alcohol, which Criminogenesis demonstrably heightens such violent tendencies. In addition, upon discovering that Criminal prohibition of the use of certain drugs, notably heroin and marijuana, certain illegal drugs do not cause violent crime, persons who use these drugs may fail has been justified as a means of suppressing other types of crime. It is said that drug to regulate appropriately their use in certain contexts – for example, prior to driving. users support their habits by theft and robbery; that drug use releases violence, This discovery may also lead them to conclude that all distinctions between legal and induces illegal trafficking in drugs, and enlarges the scope of organized crime illegal drugs are irrational and hypocritical, and may thereby encourage them to use operations. None of these considerations in fact justifies the criminalization of drug other illegal drugs which might, in fact, stimulate illegal violence. Wholesale use; indeed, criminalization itself fosters these evils. It forces drug users into illegal criminalization, in contrast to fine-tuned regulation of drug dosages and uses, conduct to obtain money for drugs and brings them into contact with the criminal apparently creates or compounds the problem it is supposed to solve. underground, the covertness of which breeds Arguments of criminogenesis are generally circular and question-begging; they First, the association of drug use with illegal trafficking in drugs and the argue for criminalization of drug use on the basis of the evils that criminalization, not consequent enlarged scope of organized crime operations is a result of drug use fosters. If there are crimes associated with drug use, they are more rationally attacked by decriminalization and by criminal statutes directed narrowly at in the competent exercise of certain personal abilities and that the behavior in the evils themselves (for example, drug use before driving), not by overbroad question fails to be competent in the required way. The degraded one thus is the statutes that actually encourage what they purport to combat. natural object of shame or self-disgust at his personal failure to live up to standards of conduct that are valued as essential to the integrity of the self. Accordingly, the Control of Physical Injury and Other Harms application of the notion of degradation to drug use requires an analysis of the valued Another argument supporting criminalization is that drug use may cause physical behavior from which such use is alleged to deviate. This behavior apparently injury and even death. The image usually invoked is that of the contemporary, embodies certain general conceptions of self-control and also includes specific urban, ghetto heroin addict, whose addiction may be accompanied by hepatitis, perfectionist ideals of such conceptions as well as notions of moral personality which tetanus, and abscesses at the site of injection. His practice of sharing needles may drug use, especially drug addiction, alienates or enslaves in some fundamentally result in the communication of disease – for example, malaria. His addiction may immoral way. Although these conceptions are interrelated, we may profitably discuss also conceal the early symptoms of diseases, such as pneumonia, or lead to them separately. malnutrition, which increases susceptibility to disease. The varying strengths of 1. General Conceptions of Self-Control doses may also increase the possibility of an overdose and sometimes death. One general conception of the person, which may underlie the claim that drug This scenario fails to recognize that any drug that is used in sufficiently high use is degrading, is the value of self-control. dosages or in certain contexts (with other drugs, for example) will probably cause Drug use does not produce a drunken anarchy inconsistent with the aims of severe harm, including, sometimes, death. This is true of many drugs currently rational will as such. Humans use drugs for diverse purposes – for therapeutic care available without prescription. Harm usually occurs when, intentionally or not, the and cure, for relief of pain or anxiety, for stimulation or depression of moods, for instructions for proper use are not observed. In general, the composition and purity exploration of imaginative experience (for creative, aesthetic, religious, therapeutic, of legal drugs are carefully regulated, and the potential for harm is kept to a or other reasons), for recreative pleasure, and the like. Humans consciously choose reasonable minimum by regulations, appropriate instructions, and warnings. among these purposes depending on the context and their individual aims. In so Many of the harms cited as the basis for criminalization could be avoided by the doing, they express self-respect by regulating the quality and versatility of their same forms of regulation that are applied to presently legal drugs. For example, experiences in life to include greater control of mood and, sometimes, increased because the Food and Drug Administration does not regulate the sale of heroin, the freedom and flexibility of imagination. For many, such drug use does not constitute buyer is never sure of what he is getting and may accidentally give himself a fatal fear-ridden anarchy, but promotes the rational self-control of those ingredients overdose. The lack of appropriate medical supervision over the sterilization of fundamental to the design of a fulfilled life. It is, of course, a banality of the hypodermic needles used to inject heroin accounts for the diseases found at the site literature of perceptive observers on drug experience that the quality of such of injection. In addition, the illegality of drug fuse discourages the addict from seeing experience varies according to the expectations, aims, and identity that the person a physician. A physician, if consulted, might detect symptoms of illness that are brings to the experience. This should confirm that drug experience is neither satanic masked by the addiction. Malnutrition, for example, is common among addicts and is damnation nor divine redemption of the self, but merely one means by which the caused both by a lack of interest in food and by a lack of money due to the crime already existing interests of the person may be explored or realized. tariff. In short, the evils of heroin use that are alleged as a ground for criminalization 2. Perfectionist Ideals of the Person are produced or fostered by such criminalization; all these dangers could be reduced No argument supporting the moral condemnation of drug use has had a stronger appreciably if heroin use were legal and regulated, as it is in Britain. and more pervasive hold on the American popular imagination than the argument for protecting the perfectionist ideal of the person. Moral Arguments The perfectionist ideal arose within the Radical Reformation and was carried to It is disingenuous to suppose that the American criminal prohibition of drug use the United States by sects, such as the Quakers and Methodists, whose own moral is based on the secular concerns of criminogenesis and control of drug-related conceptions appear to have decisively shaped the American conception of public injuries. Neither argument can justify such prohibition; indeed, serious concern with morality. the evils adduced by both arguments would require the opposite conclusion. These This conception identifies virtue, including the virtues of citizenship, with arguments are, at best, post hoc empirical makeweights for justifications of a personal imitation of Christ, and thus with a commitment to extraordinary different order, namely, moralistic and paternalistic arguments of a peculiarly self-sacrifice in the service of others, requiring the exercise of independent American provenance. In order to deal effectively with the justifications for criminal conscientiousness and self-control. Thus, Benjamin Rush, when analyzing liquor as a prohibitions, we must examine these arguments critically. social problem, focused not only on its alleged physical harmfulness, but also particularly on the resultant loss of control which was inconsistent with the required Drug Use and Degradation character of a life in service to others.’ He strikingly defined the consumption of To think of behavior as degraded is to assume that one’s self-esteem is invested distilled liquor as a form of suicide, a self-destructive impluse which ignores the constant call of service to others. The drug user, perceived through the lens of this physical dependence, when linked, develop not only with narcotics, alcohol, and moral conception, cultivates subjective experiences which lead to a similar hypnotics, but also with medical administration of many other dunks in which self-indulgent loss of control. The use of drugs thus was naturally seen (in neither psychological devotion nor drug abuse occurs. Most strikingly, it is now clear accordance with the Augustinian model of religious experience) as a radical evil, that, even with respect to narcotics, alcohol, and hypnotics, tolerance and physical even as heresy or satanic possession, with which there could be no compromise. This, dependence are not sufficient causal conditions of psychological devotion or drug in short, is the moral philosophy underlying America’s unique experiment with abuse. Many, perhaps most, persons, who have developed tolerance for and physical prohibition of alcohol, its remarkable generalization of this approach to opium and dependence on a drug do not become psychologically devoted to it. Mere tolerance marijuana, and its continuing prohibitions in other areas of drug use. and physical dependence do not lead to psychological devotion or abuse unless the One may legitimately urge this moral conception upon other as a guide for their user is aware that the symptoms he may experience when the drug is stopped are conduct, but not as a valid justification of criminal sanctions. First, the symptoms of withdrawal, which resumption of the drug would relieve. Even with autonomy-based concept of treating persons as equals rests on respect for the such knowledge, psychological devotion or abuse does not always result. Most individual’s ability to determine, evaluate, and revise the meaning of his or her own Vietnam War veterans who satisfied the requirements of tolerance, dependence, and life. It was argued earlier that the Augustinian model of self-control should not be knowledge, did not on return exhibit psychological dependence. Conversely, it legally enforced precisely because it ignores this experience of responsible appears that neither psychological devotion nor abuse turns on tolerance or physical self-determination as an important aspect of moral personality. It thus deprives dependence in any direct way. Persons may become devoted to patterns of drug use persons of autonomous choice regarding fundamental experiences. The invocation of even though their tolerance and physical dependence is low. Some assert that this is the perfectionist ideal of self-control as a compulsory moral standard is open to the condition of most American addicts, Moreover, patterns of devotion or abuse similar objections. There is no reason to believe that it is the only legitimate model may arise for drugs, such as the stimulants, which do not cause physical dependence. of responsible self-control, the only means of human fulfillment. Finally, psychological devotion and abuse do not appear to be permanent states: In any event, in such matters, the range of reasonable personal ideals is wide and many persons give up drug use in a natural process of maturation. acutely sensitive to personal context and individual idiosyncrasy. The law has no If physical dependence is neither necessary nor sufficient for psychological proper role in determining how these choices are to be made or in promoting the devotion or abuse, the popular belief that the use of certain drugs in itself leads to the perfectionist ideal in particular. enslavement of the user must be doubted. In fact, careful empirical studies of the 3. The Alienation of Moral Personality and the Concept of Addiction causes of drug devotion or abuse demonstrate the importance, not of physiological Even if the argument that all drug use is degrading cannot be sustained on the dependence, but of social and psychological factors. basis of perfectionist ideals, there remains the intuition that certain forms of drug use This perspective naturally leads one to question the conflation, implicit in the degrade because they enslave moral personality, depriving the user of certain concept of drug abuse, of psychological devotion to drugs with a moral judgment of fundamental capacities. Immanuel Kant, the father of modern deontology, sketched a degradation. This conflation cannot, as we have seen, be sustained on some ground form of this argument when, after arguing that the drunk person “is simply like a that the drug, in itself, immediately enslaves. There remains, however, the objection beast, not to be treated as a human being,” he observed: to drug use in its psychologically organizing and central role in the user’s system of The first of these debasements, which is even beneath the nature of an animal, ends. The concept of addiction expresses, then, a form of moral criticism, couched in is usually brought about by fermented liquors, but also by other stupefying the obscuring language of “drug abuse,” of such psychological centrality. agents such as opium and other products of the plant kingdom. These agents The nature of this moral criticism may be clarified by extending it, by an analogy, are misleading in that they produce for a while a dreamy euphoria and to other kinds of human behavior. Consider, for example, addiction to love or to freedom from care, and even an imagined strength. But they ate harmful in wealth. In both cases, the analogy is exact: the concept of addiction does not, as we that afterwards depression and weakness follow and, worst of all, there results have seen, turn on physiological factors like tolerance and dependence, but on a a need to take these stupefying agents again and again to increase the amount. certain kind of psychological centrality and some form of moral criticism thereof. When the concept of addiction is associated with certain drugs, at least four Love then can be an addiction when a certain attachment has psychological centrality different strands of meaning are conflated: (1) tolerance (the progressive need for among the person’s ends and when that centrality is subject to criticism. The lover higher closes to secure the same effect), (2) physical dependence (the incidence of may be said to have lost his capacity for “appreciation of and ability to deal with withdrawal symptoms when drug use is stopped, (3) psychological centrality of the other things in his environment, or in himself, so that he had become increasingly drug in one’s system of ends, and (4) a moral judgment of degradation (or, in the dependent on that experience as his only source of gratification.” Wealth, contemporary terminology, drug abuse). Tolerance and physical dependence are correspondingly, is condemned as an addiction when the pursuit of it has such often assumed to be inextricably linked to each other and to psychological devotion centrality at the inhumane cost of blinding the person to other fulfilling ends in his and drug abuse. None of these assumptions is, however, valid. Physical dependence life and to ethical concern for the lives of others. does not invariably occur in every situation where tolerance develops. Tolerance mid Both arguments are intended as enlightened social criticism, pointing up defects in the rationality or humanity of the ways in which people structure their ends and radically inappropriate to the defense of prohibitions of many forms of drug use. lives. As long, however, as these defective life plans do not lead the agent directly to It is initially important to distinguish two kinds of paternalism: interference on violate the moral rights of others - for example, by engaging in violence, robbery, or the basis of facts unknown to the agent, in order to save the agent from harms that he the like - no suggestion is made that these criticisms should be expressed through would wish to avoid, and interference on the basis of values that the agent does not criminalization. In a constitutional democracy committed to equal concern and himself share. Paternalism of the first kind, as applied in such laws as those securing respect to autonomy, we honor the rights of persons to live their lives as they choose; the purity of drugs, is unobjectionable. Paternalism of the second kind, which we make our criticisms as part of a liberal culture offering pluralistic visions of the underlies many laws currently criminalizing drug use, is not only objectionable, it is good life. a violation of human rights. In similar fashion, the gravamen of the moral criticism implicit in the concept of On this basis, no good argument call be made that paternalistic considerations drug abuse is the objection to the psychological centrality of drug use among a justify the kind of interference in choices to use drugs that is involved in the current person’s ends. Sometimes, the objection is put in terms of the propensity of addicts criminalization of many forms of drug use. Indeed, in many cases, such choices seem to commit violent crime and thus violate the rights of others, but this rests on false all too rational. factual assumptions or on causal connections that the criminalization of drug use, not Drug use serves many disparate purposes: therapeutic care and cure, the relief of drug use itself, fosters. We are left with the normative judgment that the pain or anxiety, the stimulation or depression of mood or levels of arousal, the psychological centrality of drugs in the user’s life is unreasonable, because of the exploration of imaginative experience for creative, aesthetic, religious, therapeutic, enormous risks or “unbelievable sacrifices” that he undertakes or because of other recreational, or other purposes, and sheer recreative pleasure. These purposes are not values that he sacrifices. But it is difficult to see how this moral criticism can be irrational. To the contrary, the pursuit of them may enable the person better to given the normative weight that it is intended to bear, that is, to justify the achieve his ends in general, or to explore aspects of experience or attitudes to living criminalization of drug use, consistent with the autonomy based interpretation of which he may reasonably wish to incorporate into his theory of ends. There is almost treating persons as equals. From this perspective, persons are to be guaranteed, on no form of drug use which, in a suitably supportive context and setting, may not fair terms to all, the capacity to define with dignity and take responsibility for the advance important human goods, including the capacity of some poor and deprived meaning of their own lives, evaluated and revised in terms of standards and evidence people to work more comfortably, to endure adverse climactic and environmental which express higher-order interests in freedom and rationality. As we have seen, the circumstances, and in general to meet more robustly and pleasurably the demands on psychological centrality of drug use for many young addicts in the United States may, their lives. Some religions, like some artists, have centered themselves on drug use, from the perspective of their own circumstances, not unreasonably organize their finding in drugs a matrix of religious and imaginative experience in which to explore lives and ends. In contrast, the moral criticism implicit in the concept of drug abuse and sometimes realize their higher-order interests in giving life intelligible meaning fails to take seriously the perspective and circumstances of the addict, often and coherence. Some persons today find in the triumph of technological society the substituting competences and aspirations rooted in the critic’s own background and reductio ad absurdum of certain dynamics of Western culture and identify drug use personal aspirations to organize a self-respecting social identity, which might only as one organon for cultivating a saner and more balanced metaphysical orientation exceptionally require drug use. Accordingly, the moral content of the concept of that expresses their most authentic and reasonable interests. Some find even in drug abuse appears deeply controversial. Certainly, it can bear no more just “addictive” drugs a way of life with more interest, challenge, and self-respect than normative weight than the criticism of love or wealth as addictions. Society is not the available alternatives. It is dogmatic to assert that these and other people do not, prepared to apply criminal sanctions in those cases because of considerations that through drug use, more rationally advance their ends. should apply to drug use as well: in a society committed to equal concern and respect Sometimes the paternalistic argument is made that certain forms of drug use, to autonomy, persons are entitled to make their own trade-offs among basic personal even if carefully regulated, may result in certain clear harms to the user. For example, and social values. We certainly can criticize these decisions, I’m we do not regard heroin use may lead to addiction, to impotence, to certain organic disorders, and criminalization as an appropriate expression of our condemnation. sometimes, despite all proper precautions, to death. As long as any such irreparable Voluntary use of drugs cannot reasonably be supposed to be a slavery that harm to the person is in prospect, it is argued, paternalistic interference is justified. alienates the moral personality, because even psychological devotion to drugs may Even if certain of these alleged harms, for example, addiction, are morally express not a physiological bondage, but critical interests of the person. Indeed, there problematic and question-begging, others, such as death, are not. The first is something morally perverse in condemning drug use as intrinsic moral slavery requirement of just paternalism, however, is that judgments of irrationality must rest when the very prohibition of it seems to be an arbitrary abridgement of personal on a neutral theory of the good consistent with the agent’s own higher-order interests freedom. in rationality and freedom. Even intentionally ending one’s own life cannot, in all Even if no other moral argument on behalf of criminalization can be sustained, it circumstances, be supposed irrational under this criterion. If intentional killing is not may still he argued that drug use is suffiiciently irrational conduct that there is moral always irrational, neither, a fortiori, is drug use, in which the user makes trade-offs title to interfere with it on paternalistic grounds. This is, however, an argument that is between valued forms of activity and higher risks of death that reasonable persons sometimes embrace. Certainly, the right of persons to engage in many high-risk occupations and activities is uncontroversial. Part of respect for human rights is the recognition of the right of persons, as free and rational beings, to determine the meanings of their own lives and projects, including the frame of such plans at the boundaries of life and death. The values that some persons place on drug use can be accorded no less respect. Certainly, drug use does not enable a person to realize more than is implicit in the interests and ambitions brought to the drug experience, but that indicates not the frivolity or pointlessness of the experience, but its potential seriousness for the kinds of spiritual exploration and risk-taking by independent-minded and rational persons that should be centrally protected in a free society. At most, paternalistic concern for forms of irreparable harm might dictate appropriate forms of regulation to insure that drugs are available only to mature persons who understand, critically evaluate and voluntarily accept the risks. To minimize pointless risks, such regulations might insure that certain drugs, LSD, for example, are taken only under appropriate supervision. In general, however, there is no ground of just paternalism for an absolute prohibition of such drugs. The radical vision of autonomy and mutual concern and respect is a vision of persons, as such, having human rights to create their own lives on terms fair to all. To view individuals in this way is to affirm basic intrinsic limits on the degree to which, even benevolently, one person may control the life of another. Within ethical constraints expressive of mutual concern and respect for autonomy, people are, in this conception, free to adopt a number of disparate and irreconcilable visions of the good life. Indeed, the adoption of different kinds of life plans, within these constraints, affords the moral good of different experiments in living by which people can more rationally assess such basic life choices. The invocation of inadequate moral and paternalistic arguments of the kind discussed violates these considerations of human rights, confusing unreflective personal ideology with the moral reasoning that alone can justify the deprivation of liberty by criminal penalty.